England planning news, October 2019

The Government has published a National Design Guide which forms part of the planning practice guidance suite (PPG). The design section of the PPG has been replaced with a revised section called Design: process and tools.

The National Design Guide outlines and illustrates the Government’s priorities for well-designed places in the form of ten characteristics: context, identity, built form, movement, nature, public spaces, uses, homes and buildings, resources, and lifespan.  These characteristics are considered to create the character of a well-designed place, to nurture and sustain a sense of community and to work positively to address environmental issues affecting climate.

According to the guide, a National Model Design Code will set out detailed standards for key elements of successful design. The Code will be informed by the final report of the Building Better, Building Beautiful Commission and be consulted upon in early 2020.

The guide notes:

“Specific, detailed and measurable criteria for good design are most appropriately set out at the local level. They may take the form of local authority design guides, or design guidance or design codes prepared by applicants to accompany planning applications”.

However, it also says that:

“In the absence of local design guidance, local planning authorities will be expected to defer to the illustrated National Design Guide and National Model Design Code. This will be consulted on, alongside the consultation on the use of the National Model Design Code, in early 2020".

The Secretary of State for Housing, Communities and Local Government, Robert Jenrick, announced the publication of the guide in a speech at the Conservative Party Conference in which he also referred to a number of other planning and design related proposals, including setting higher planning fees where a high quality service would be offered and hinted at reforming procedures relating to planning.

In the run up to the conference the Secretary of State was widely reported in the press as describing a number of proposed forthcoming changes to the planning system.

Mr Jenrick has retweeted a number of press articles, including those indicating proposals for two storey extensions to certain residential properties to benefit from permitted development rights. However, as yet the Ministry of Housing, Communities and Local Government has not published any speeches or documents in relation to these announcements.

Lichfields will discuss any future announcements in Lichfields’ Planning Matters blog.

The most recent amendments to the Community Infrastructure Levy (CIL) Regulations (2010) came into force on 1 September 2019 in England. They are the second set of amendments to the CIL Regulations that do not apply in Wales.

The new schedule 1 at the end of the Regulations attempts to consolidate into one place the formulas for calculation of CIL liability and social housing relief, providing various scenarios for amended planning permissions that are clearly identified.

As reported in our July planning news, amendments to the Regulations relate to:

• Lifting the pooling restriction and requiring local planning authorities that receive CIL payments or financial planning obligations to prepare annual infrastructure funding statements
  
  
• New abatement provisions for s73 phased planning permissions first permitted before CIL was in effect (‘balancing’ and ‘phasing credits’)
  
  
• Carrying over of exemption, relief and payment by instalments to s73 planning permissions
  
  
• Applying indexation to s73 planning permissions
  
  
• A new RICS CIL index from 2020

Planning Practice Guidance regarding the Community Infrastructure Levy has also been updated.

The High Court has agreed with an Inspector’s conclusion that a policy in a time-expired development plan may not necessarily be out of date and such a policy is, on its own, capable of preventing the operation of the so-called tilted balance at paragraph 11(d) of the National Planning Policy Framework (‘the Framework’).

The relevant sections of paragraph 11 of the Framework are:

“11. Plans and decisions should apply a presumption in favour of sustainable development.

 […]

For decision-taking this means:

c) approving development proposals that accord with an up-to-date development plan without delay; or

d) where there are no relevant development plan policies [the first trigger], or the policies which are most important for determining the application are out-of-date [the second trigger]⁷, granting permission unless:

the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed⁶;

or ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole” [footnotes not included in quote].

A Planning Inspector had dismissed an appeal relating to the non-determination of a planning application for 50 homes ‘in the countryside’ of Aylesbury Vale because the proposed development would harm the rural character and appearance of the area causing conflict with Policy GP.35 of the development plan. According to the judgement, in making the determination the Inspector said:

“I have found that the Council can demonstrate a five-year supply of deliverable housing sites….Therefore, the planning balance set out in paragraph 11d of the Framework is not engaged by this particular trigger. It is not engaged by there being no relevant development plan policies because Policy GP.35 of the AVDLP is relevant. Indeed apart from Policy GP.2 concerning affordable housing, it is the only policy relevant to my determination of the appeal. With the exception of policies RA.13 and RA.14 discussed above, neither party referred to any other policy during the hearing. Policy GP.35 is not "out of date" and so paragraph 11d of the Framework is not engaged because the policies most important for determining the application are out of date”.

Paul Newman New Homes challenged the decision and the claim was dismissed. They submitted:

“[…] that the Inspector's interpretation of paragraph 11d of the 2018 Framework entailed a radical but unintended change from the 2012 Framework, and which worked contrary to its purpose of "boosting" the supply of housing. The phrase "no relevant development plan policies" meant no basket of policies sufficient for the determination of the application. Here, it was not sufficient for the determination of the application that there was just the one policy, GP.35, which restricted it, and that there were none for the supply of housing or its location, apart from GP.2 which clearly favoured the development of affordable housing, and two policies related to settlements, which were irrelevant”.

The judge disagreed:

“It would be wrong to suppose, just because no changes were expressly heralded as significant, that no changes at all were intended, or that the changes were to be so minor that they might as well be ignored in favour of the exposition of the earlier but different language. The first trigger in each version would cover many of the same situations, but the 2018 version focuses on policies and not on the existence of a plan”.

The judge concluded that one relevant development plan policy is sufficient to prevent the operation of the ‘tilted balance’ and that ‘relevant’ does not mean decisive or of high importance.

And in respect of the ‘second trigger’ the ‘policies’ most important for determining the application do not need to be comprised of a body of policies and may indeed be a single policy.

The fact that one or more of these policies is out of date is “relevant but not necessarily determinative” of whether the basket of policies as a whole is out of date. Furthermore, a policy in a time expired plan that has been saved may not be out of date.

The judge also agreed with the Inspector that policy GP.35, though a design policy, was also relevant to the principle of development and therefore the determination of the outline planning permission. Accordingly, the Inspector was entitled to conclude that the development would not accord with the development plan.  On this basis GP.35 was also a relevant policy in the context of paragraph 11d.

A High Court judgement has concluded that the legislation that refers to extending the time period for determining a prior approval application does not apply to prior approval applications that have a specified time period for determination; it only applies to applications that have a default determination period of 8 weeks because the time period for determination is not specified.

The case related to an application for prior approval in respect of the change of use from a grain barn to a dwelling, permitted by virtue of Class Q of the Town and Country Planning (England) (General Permitted Development) Order 2015 (GPDO). The 56 day determination period for the application expired on 10 January 2019.

Wokingham Borough Council sought from the applicant an extension of time to determine the application by 31 January 2019, on the basis that Article 7 of the GPDO permits such an extension.

The applicant, Warren Farm, expressed doubt that the determination period could be extended but agreed and the application was refused on 30 January 2019 due to a lack of information. Warren Farm sought judicial review on the basis that the decision had no legal effect because it was made out of time.

The judge held that where planning permission is granted by the GPDO for Class Q development (and several other Classes of change of use development), that development must accord the requirements of Paragraph W (of Part 3 Schedule 2 to the GPDO).

Accordingly, one of the conditions of a Class Q planning permission is that the development must not commence earlier than the occurrence of one of the circumstances listed in Paragraph W, which includes the authority not determining the application within 56 days of receipt.

Wokingham BC argued that further text in Paragraph W should be implied in order to allow for a circumstance in which the determination period is not specified.

The judge did not agree that words should be implied into Paragraph W in order to give Article 7 c) effect and concluded:

“[…] Where the legislator has fixed a period of time accompanied by inaction on the part of an authority as having a specified effect to the advantage of a developer, the authority is constrained to act promptly if it wishes to act at all, for the effect of time passing without a decision is that the development can proceed[…]

28. Secondly, it promotes certainty. Where a positive effect can be the result of inaction, it is better if the period of inaction that will have that effect is subject to as little variation as possible.
    
    
29. Thirdly, the structure of the GPDO may tend to suggest that article 7 should not be seen as imposing a condition.”
    
    

The decision was quashed as it had been made without jurisdiction, because planning permission had been granted on 10 January 2019.

Comment: This case suggests that a complete prior approval application relating to a permitted change of use that was refused after the specified determination period had expired, might in fact have been granted planning permission by the GPDO - even if an extension of time had been agreed (provided, of course, that the development did indeed benefit from permitted development rights). However, one should not act or fail to act upon this initial view without seeking advice.

The Government has set up an independent review of High Speed 2 (HS2) to establish whether it should proceed. Douglas Oakervee will lead the review, with Lord Berkeley as his deputy.  Supported by an expert panel they are to produce a report for the Secretary of State for Transport by the Autumn.  It is intended that the report will inform the future of the project.